(PC) Hernandez v. Ogboehi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO HERNANDEZ, ) Case No.: 1:20-cv-01019-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 IFEOMA OGBOEHI, et al., ) ) (ECF No. 29) 15 Defendants. ) ) 16 ) 17 Plaintiff Armando Hernandez is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed September 20 29, 2021. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 /// 28 /// enn eee nnn ee III IE I EID IE EEO 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 || volunteer counsel only in the most serious and exceptional cases. In determining whether 3 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on th 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 5 || legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Even if it 7 || assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 8 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 9 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 10 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 11 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 12 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 13 || facts necessary to support the case.”) Circumstances common to most prisoners, such as lack of lega 14 || education and limited law library access, do not establish exceptional circumstances that would 15 || warrant a request for voluntary assistance of counsel. The test is whether exception circumstances 16 || exist and here, they do not. There is simply an insufficient showing that Plaintiff is unable to 17 || adequately litigate this action. Further, at this stage of the proceedings, the Court cannot determine 18 || whether Plaintiff is likely to succeed on the merits of his claims. Accordingly, Plaintiff's motion for 19 || appointment of counsel is be denied, without prejudice. 20 21 □□ IS SO ORDERED. Al (re 22 pated: _ September 30, 2021 OF 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28